Zhongji Development Construction Engineering Company Limited v Kamoto Copper Company SARL

Zhongji Development Construction Engineering Company Limited, a Chinese company, entered into an interim agreement (January 2008) and later a main construction agreement (August 2008) with DRC Copper and Cobalt Project SARL (DCP), a Congolese entity, for piling and civil works at a mining project in the Democratic Republic of Congo. The main agreement contained an arbitration clause providing for arbitration under the Rules of the Association of Arbitrators (Southern Africa), seated in Gauteng and governed by English law. The interim agreement was skeletal and contained no dispute resolution clause. Following suspensions and termination of the works, Zhongji submitted several invoices, some under the interim agreement and others under the main agreement, many of which remained unpaid. In 2009–2010, DCP merged into Kamoto Copper Company SARL, which assumed DCP’s assets and liabilities. Zhongji sought declaratory relief in the South Gauteng High Court that its disputes, including those arising from the interim agreement, were arbitrable under the arbitration clause in the main agreement. Both parties were peregrini of South Africa and no attachment to found or confirm jurisdiction had been effected. The High Court dismissed the application, and Zhongji appealed to the Supreme Court of Appeal.

The appeal was dismissed, with the order of the South Gauteng High Court upheld.

The case reinforces South Africa’s pro-arbitration stance and alignment with international best practice under the New York Convention. It affirms the principle of kompetenz-kompetenz, namely that arbitrators are empowered to determine their own jurisdiction, and underscores judicial restraint in interfering with arbitral processes, especially in international disputes involving peregrini.